Thursday, September 24, 2009

Rethinking "Ineffective Assistance" of Immigration Counsel

Yesterday I wrote about the astoundingly high percentage of immigration clients who walk through my door after having been ripped off, defrauded, or simply incompetently represented by an attorney, notario, or immigration consultant. I told you that based upon what I've seen so far in 2009, 80% - that's four out of five - of my new clients have been victimized in such a fashion. Today I'm going to discuss how this reality is being handled by our federal government, and why things need to be reexamined at the level of adjudications.

First some background: in my years as visa officer, I had the opportunity to serve as Fraud Officer for the Stateside Criteria program in Ciudad Juarez, Mexico. The program, long since terminated, permitted aliens who were marrying US citizens but were ineligible to adjust status to travel to border posts in Mexico and Canada for the adjudication. The rationale was that it was too expensive for a Filipino, for example, to fly home, and this would be cheaper. Well, getting to Juarez has never been cheap and there was a far more compelling ulterior motive: since the Mexicans didn't want third country nationals stuck in Mexico after a visa denial at the U.S. Consulate in Ciudad Juarez, a policy was established at the border to permit Stateside applicants who had been denied their immigrant visa to be paroled back into the U.S. So no matter how fraudulent the marriage, they got back in.

I raise the example of Stateside Criteria because the statistics were similar: when I was Fraud Officer in Mexico, some 80% - four out of five - marriage cases via Stateside Criteria were fraudulent. Some had been shanghaid by a notario; the vast majority were committing deliberate fraud. So that begs the question: how many of these 80% of clients who've been ripped off were really ripped off...and how many were like the Stateside folks, simply trying to hustle a way into America which they knew to be fraudulent?

Look, I've seen WAY too many intelligent Latin Americans from considerably stable countries who applied for political asylum when they HAD to know they didn't stand a chance...but wanted an EAD - employment authorization. After you've heard a few hundred educated professionals sing their version of Shaggy's "It Wasn't Me", it is difficult to buy into the whole "victim" deal. They sound more like co-conspirators, frankly. Regardless, it is my job to disentangle the tangled web and that's what I do. But does that mean that 80% of the clients I'm seeing these days are partially responsible for their bad experiences with prior counsel? The answer is "no". The overwhelming majority have simply been given poor legal advice and, more often than not, are in trouble because their attorney simply didn't know enough about immigration law, period. For whatever reason, the Shaggy's have faded away and what I am seeing instead are solid NIV applicants with great cases in deep trouble because of bad lawyering.

As a former adjudicating visa officer, I had to exercise a blend of compassion and pragmatism to insure that the decisions I made were just...and it was never easy. I believe that this is precisely what U.S.immigration adjudicators still must do today. In the "old days" of INS, I filed dozens of Motions to Reconsider predicated on ineffective assistance of counsel, and when the officer in charge understood that the applicant was truly a victim of bad lawyering , we would invariably be given an opportunity to correct the problem...we would be allowed to lead the client to a just result given the circumstances.

Apparently, however, the barrage of immigration "dabblers" - attorneys who claim to be immigration attorneys but are essentially dabbling in what is one of the most intricate substantive areas of law -- has used up this federal goodwill, and USCIS has now more or less taken the position that even if it was the attorney's fault, too bad. Recently, the USCIS refused to permit rectification of a clear botch job by an attorney, even though it would have been an easy fix. I was nicely told that they were sorry but reopening the matter was prohibited by policy. Instead, the client now has to spend months and a small fortune to correct the lawyer's mistake.

Justice unfolds only when the USCIS treats each applicant as an individual, property sanctions those who participate in fraud, and grant reconsideration to those who have been victimized by incompetent representation. There is simply no justice in punishing someone for another's sins.